Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 118 (CHH)

Jagan Ram v. State of MP

2014-03-12

PRASHANT KUMAR MISHRA, YATINDRA SINGH

body2014
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 29.1.1999 passed by the 1st Additional Sessions Judge, Ambikapur, District Surguja in S.T. No.338/94 whereby learned Sessions Judge convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life. 2. The incident giving rise to the offence took place at about 5 pm on 6.7.1994. Deceased Manobdh had climbed on jack fruit tree standing on the premises of appellant Jagan Ram at village Bhotko. When the appellant heard the noise of fall of jack fruit from the tree, he came out of his house and shouted as to who is plucking the jack fruit, on which the deceased came down and started abusing the appellant by saying that he is not giving share of jack fruit to him. When the appellant stated that he would be given his share, the deceased was about to assault the appellant, on which he went inside his house and picked up an axe and scuffle took place between them in which the appellant assaulted the deceased over his head causing 4 injuries including 3 lacerated wounds. The appellant also sustained 2 lacerated wounds on head in the said quarrel, which was allegedly caused by the deceased. 3. The FIR (Ex.-P/1) was lodged by Samundari Bai (PW-1), wife of the deceased, at 20.45 hours on 6.7.94 i.e. on the date of the incident itself. In the FIR, she stated that a dispute was going on between her husband (the deceased) and uncle of the deceased (appellant) regarding share of jack fruits. In the afternoon, she had gone to graze the oxe and came back at about 5.30 pm. One Bisheshar Khairwar of Dandpara informed her that one Rama Ahir has informed him that quarrel has taken place between the appellant and the deceased and the deceased has become unconscious. The informant went to see her husband and found that he was lying unconscious in front of the house of the appellant and had sustained injuries over his head and hand. Jethu Gond, the appellant's wife and Fundur were present at the place. Fundur informed the first informant that when the informant's husband was plucking the jack fruits, the appellant tried to restrain/convince him, on which a quarrel took place and all of a sudden, Jagan assaulted the deceased by axe. 4. Jethu Gond, the appellant's wife and Fundur were present at the place. Fundur informed the first informant that when the informant's husband was plucking the jack fruits, the appellant tried to restrain/convince him, on which a quarrel took place and all of a sudden, Jagan assaulted the deceased by axe. 4. Merg (Ex.-P/15) was recorded by the concerned police on 6.7.94 on the information of constable R. Bhuneshwar Ram. This constable received information from the hospital where the deceased was taken for treatment and was declared dead at 10.45 pm. 5. The dead body inquest was prepared vide Ex.-P/4. Blood stained soil and plain soil were collected vide Ex.-P/5. The appellant's memorandum statement was recorded on 10.7.94 vide Ex.-P/6 which led to recovery of axe from the appellant on 10.6.94 vide Ex.-P/7. MLC of the deceased was submitted by Dr. SP Gupta (PW-6) at CHC, Batouli vide Ex.-P/8. The postmortem was conducted by Dr. SP Gupta (PW-6), who submitted his report vide Ex.-P/11 opining that the mode of death is coma caused by brain and skull injuries about 18 hours prior to postmortem examination and the death is homidical in nature. 6. The appellant was also sent for medico legal examination vide Ex.-P/12A and the report was submitted by Dr. SP Gupta (PW-6) vide Ex.-P/12 finding 2 lacerated wounds on head. The appellant was also advised for X-ray examination. The axe recovered from the appellant was sent for examination wherein 2 queries were raised firstly whether the injuries sustained by the deceased could be caused by the axe and secondly, whether there are blood stains on the axe. Dr. S.P. Gupta made endorsement on the application itself and opined in positive on both the queries. Spot map Ex.-P/16 was prepared by the IO. 7. Seized articles were sent for FSL examination and the report was submitted by the chemical examiner vide Ex.-P/18. Blood stains were found on the axe recovered from the appellant marked as article 'D'. 8. On completion of investigation, charge sheet was filed against the appellant for committing offence under Section 302 of the IPC. 9. The prosecution examined 10 witnesses. The appellant abjured the guilt and pleaded the right of self defence concerning his body as well as his property. He examined one defence witness namely, DW-1 Hirmaniya. 8. On completion of investigation, charge sheet was filed against the appellant for committing offence under Section 302 of the IPC. 9. The prosecution examined 10 witnesses. The appellant abjured the guilt and pleaded the right of self defence concerning his body as well as his property. He examined one defence witness namely, DW-1 Hirmaniya. At the end of trial, the trial Court convicted and sentenced the appellant as mentioned in paragraph-1 of the judgment. 10. We have heard learned counsel for the parties and perused the record. 11. PW-1 Samundari Bai, is the wife of the deceased. She says that a quarrel took place between her husband and the appellant concerning plucking of jack fruits, on which the appellant assaulted her husband over his head, neck and left hand. Her husband died on the spot. When she was confronted with the contents of FIR and her case diary statement (Ex.-P/1 & Ex.-D/1 respectively) to the effect that she was not present at the time of the incident, she denied that she had given any such information or statement to the police. No other witness has spoken about the presence of this witness at the time of occurrence. Therefore, it appears, she has improved her case by presenting herself as eyewitness. Both in the FIR as well as in the case diary statement, she has stated that she came back to the village at 5.30 pm i.e. after the incident and found that her husband is lying unconscious in front of the house of the appellant. 12. PW-2 Fundur is an eyewitness. He says that at about 3 pm in the afternoon, he heard the noise of fall of jack fruit, on which he came out of the house. He saw both the deceased and the appellant were quarreling and when the deceased told that the appellant is not giving share of jack fruit to him, the appellant stated that he would give jack fruit and his share would be provided to him, on which arguments took place between the two and they started abusing each other. Manbodh got down from the tree and the appellant went inside his house. This witness said that he does not know as to what happened after both of them went inside the house. Therefore, at this stage, he was declared hostile. Manbodh got down from the tree and the appellant went inside his house. This witness said that he does not know as to what happened after both of them went inside the house. Therefore, at this stage, he was declared hostile. One thing is clear that this witness had seen the appellant entering his house and the deceased also went inside the house of the appellant chasing him. 13. PW-3 Visheshar is a witness to the dead body inquest. 14. PW-4 Kuwer is a witness to the seizure memo Ex.-P/5, memorandum statement Ex.-P/6 and the seizure memo Ex.-P/7. He has been declared hostile. 15. PW-5 Balram is the younger brother of the deceased. He has stated that the deceased was plucking the jack fruits and when the appellant tried to convince him not to pluck the jack fruits, a dispute arose and when Manbodh got down from the tree, the appellant assaulted him by axe and he died. This witness has stated the sequence of events as if he is an eyewitness. But reading of his case diary statement (Ex.-D/2), it appears that he was in his house and he was informed about the incident by (PW-1) Samundari Bai, wife of the deceased. Since it has already been found that Samundari Bai was not present at the time of the incident, PW-5 Balram who received information from Samundari Bai cannot be said to be an eyewitness. 16. PW-6 Dr. S.P. Gupta has conducted postmortem over the dead body of the deceased as well as MLC of the appellant. He found the following injuries over the person of the deceased:- “Lacerated wound of size 2.5 cm x ½ cm x bone in right parietal region of skull. Lacerated wound of size 3 cm x ½ cm x bone in left parietal region of skull. Lacerated wound of size 3.5 cm x ½ cm x bone in occipital region of skull. Swelling on left hand.” 17. PW-6 Dr. S.P. Gupta has found the following injuries on the person of the appellant:- “Lacerated wound of size 3 cm x ½ cm x bone surface in right side of scalp in occipital region of skull. Lacerated wound of size 2.5 cm x ½ cm x bone deep in frontal bone of skull. Above injuries may be caused by hard and blunt object.” 18. Lacerated wound of size 2.5 cm x ½ cm x bone deep in frontal bone of skull. Above injuries may be caused by hard and blunt object.” 18. PW-7 Purshottam Ram is the constable who has brought sealed packet from the hospital and deposited the same in the police station. 19. PW-8 Mangal Sai is a witness to Ex.-P/5 seizure of blood stained soil & plain soil, Ex.-P/6 memorandum statement of the appellant, Ex.-P/7 seizure memo. He has been declared hostile. 20. PW-9 Charku Das has proved Ex.-P/14 property seizure memo. PW-10 Navneet Patil is the IO. 21. The appellant in his examination under Section 313 CrPC has stated that when he was in his house, the deceased was committing theft of jack fruits from the tree belonging to him. When he came out in the front courtyard, he heard the noise of fall of jack fruits on the ground. He saw that Manbodh has climbed on the jack fruits tree with an axe and was committing theft of jack fruits. When he restrained him by saying that why he is plucking jack fruits, the deceased got down from the tree by abusing and challenged his authority to restrain him from doing so. He also threatened to kill him and assaulted him over his head. He entered his house by raising alarm, on which the deceased chased him and also entered his house and again assaulted over his head. Thereafter the appellant defended himself. 22. The appellant also desired to and produced a defence witness DW-1 Hirmaniya. This defence witness has supported the specific defence raised by the appellant in his examination under Section 313 CrPC. She also stated about the presence of PW-2 Fundur at the place of the incident. This witness was cited as prosecution witness in the charge sheet and was given up by the prosecution. Therefore, her presence at the place of occurrence cannot be doubted. Since she is an eyewitness, her evidence assumes significance and more so when the prosecution has given up this witness. 23. On the basis of discussion made above and marshalling of evidence of the witnesses, it would clearly emerge that:- the jack fruit tree belonged to the appellant as it was standing in the premises in his possession. the deceased climbed over the jack fruit tree belonging to the appellant and was committing theft of jack fruits. 23. On the basis of discussion made above and marshalling of evidence of the witnesses, it would clearly emerge that:- the jack fruit tree belonged to the appellant as it was standing in the premises in his possession. the deceased climbed over the jack fruit tree belonging to the appellant and was committing theft of jack fruits. the appellant heard the noise of fall of jack fruits and tried to restrain/convince him for not plucking or committing theft of jack fruits. the deceased got down from the tree abusing the appellant and immediately after he got down, he assaulted the appellant. when the appellant entered his house, he was chased by the deceased and it appears, thereafter the appellant inflicted axe blow over parietal region of the head of the deceased on account of which he died. 24. Section 100 of the IPC makes a provision as to when the right of private defence of the body extends to causing death, which reads thus:- “The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:- First.-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.-An assault with the intention of committing rape; Fourthly.-An assault with the intention of gratifying unnatural lust; Fifthly.-An assault with the intention of kidnapping or abducting; Sixthly.-An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to be apprehended that he will be unable to have recourse to the public authorities for his release.” 25. In James Martin Vs. State of Kerala, (2004) 2 Supreme Court Cases 203, the Supreme Court has held as under:- “13. ...........It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. {See Munshi Ram Vs. Delhi Admn., AIR 1968 SC 702 ; State of Gujarat Vs. Bai Fatima, AIR 1975 SC 1478 ; State of U.P. Vs. Mohd. Musheer Khan, AIR 1977 SC 2226 ; and Mohinder Pal Jolly Vs. State of Punjab, AIR 1979 SC 577 }. Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is a reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of this Court in Salim Zia vs. State of U.P., AIR 1979 SC 391 , runs as follows: (SCC p.654, para 9) “It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence.” The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. 17. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. 17. As noted in Buta Singh V. State of Punjab, AIR 1991 SC 1316 , a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him. Where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hypertechnical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact. 18. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh Vs. State of M.P., AIR 1971 SC 1857 ) Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. (See Vidhya Singh Vs. State of M.P., AIR 1971 SC 1857 ) Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot, it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a courtroom, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances. 19. In the illuminating words of Russell (Russell on Crime, 11th Edn., Vol. I at p.49): “...a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable.” 26. In Kulwant Singh and others Vs. State of Punjab, (2004) 9 Supreme Court Cases 257, the Supreme Court has held as under:- “51. Chapter IV of the Indian Penal Code provides for general exceptions. Sections 96 to 106 which occur in the said chapter deal with the right of private defence. Section 96 says that nothing is an offence which is done in exercise of the right of private defence. This right, however, is available to a person who is suddenly confronted with the immediate necessity of averting an impending danger which is not his own creation. The necessity must be present, real or apparent. It is preventive and not retributive. (See Laxman Sahu Vs. State of Orissa, AIR 1988 SC 83 ) 52. This right, however, is available to a person who is suddenly confronted with the immediate necessity of averting an impending danger which is not his own creation. The necessity must be present, real or apparent. It is preventive and not retributive. (See Laxman Sahu Vs. State of Orissa, AIR 1988 SC 83 ) 52. The question, whenever a right of private defence is claimed, must be judged from the nature of occurrence, the circumstances in which it had occurred and whether the person claiming such right has acted legitimately. Attending circumstances would also be relevant for judging the same. 53. It is well settled that the burden to prove the same is on the person who raises such plea. For the purpose of proving the same, the accused may rely upon the materials on record brought by the prosecution in addition to examining the witnesses and adducing positive evidences, if any. A person has a right of private defence of body under Section 97 and in the event it is found that he was entitled to exercise the same, he necessarily must be held to have a right to cause death in terms of Section 100 of the Indian Penal Code, if there was a reasonable apprehension that death or grievous hurt would be caused. 54. For arriving at a finding as to whether the accused persons had legitimately exercised their right of private defence, it is necessary to pass the question as to who had started the assault.” 27. In Darshan Singh Vs. State of Punjab and another, (2010) 2 Supreme Court Cases 333, the Supreme Court has observed as under:- “23. It is a settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no straitjacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not.” 28. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not.” 28. In view of the nature of evidence available on record, particularly, the evidence of eyewitness PW-2 Fundur, which is duly corroborated by the evidence of DW-1 Hirmaniya, who also stated about the presence of PW-2 Fundur and also in view of the specific defence raised by the appellant in his examination under Section 313 CrPC, it would appear that the deceased assaulted the appellant by axe and caused injuries over his skull. If the injuries are caused over skull by using axe, may be from blunt side, in all probability, the appellant was justified in apprehending that the death may be caused as a consequence of such assault and if he would not have retaliated, the deceased might have caused repeated assault over him causing grievous hurt, which otherwise would have caused the death. Thus, the act of the appellant is squarely covered under the circumstances firstly and secondly enumerated under Section 100 of the IPC and the appellant was entitled to exercise the right of private defence of his body. 29. Section 103 of the IPC is about when the right of private defence of property extends to causing death, which reads thus:- “The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:- First.-Robbery; Secondly.- House-breaking by night; Thirdly.-Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly.-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.” 30. From the evidence available on record, it would clearly appear that the deceased was committing theft of jack fruits from the tree belonging to the appellant and when he was restrained/convinced, he started abusing the appellant, got down from the tree, assaulted him by axe and while chasing him went inside his house and thereafter the appellant assaulted him and caused his death. Thus, the act of the appellant also amounts to exercise of right of private defence of property as provided under Section 103 of the IPC. 31. For the foregoing, this Court is of the considered opinion that the appellant has exercised his right of private defence of body as well as of property and is entitled to acquittal because since he has defended his body and property, he has not committed culpable homicide. 32. In the result, the appeal is allowed. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set aside and he is acquitted of the said charge. The appellant is on bail. His bail bond shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. He shall appear before the higher Court, as and when directed.